Jones Creek Investors, LLC et al v. Columbia County, Georgia et al
Filing
228
ORDER denying Defendants' 103 and 104 MOTIONS to Dismiss. Signed by Chief Judge Lisa G. Wood on 3/28/2013. (ca)
3n the 11nittb Otatto flttrtct Court
for the Ooutbtm flitrtct of georgia
uguta fltbtton
JONES CREEK INVESTORS, LLC; and
SAVANNAH RIVERKEEPER, INC.,
Plaintiffs,
I.'i.1
COLUMBIA COUNTY, GEORGIA;
CSX TRANSPORTATION, INC.;
MARSHALL SQUARE, LLC, f/d/b/a
NBR INVESTMENTS LLC;
D.0.LAWRENCE COMMERCIAL
REAL ESTATE, LLC;
DONALD LAWRENCE;
JOSEPH H. MARSHALL, III;
MARSHALL SQUARE PROPERTY
OWNER'S ASSOCIATION, INC.;
KIMLANDCO, LLC;
SOUTHERN SITE DESIGN, INC.;
ROBERT F. MULL1NS;
BRUCE LYONS; and
JONES CREEK PARTNERS, LLC,
Defendants.
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CV 111-174
ORDER
Presently before the Court are Defendants' Motions to
Dismiss. Dkt. Nos. 103, 104. Upon due consideration, the
motions are DENIED.
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AO 72A
(Rev. 8/82)
I. PROCEDURAL BACKGROUND
This is an action seeking damages and injunctive relief for
alleged violations of the Clean Water Act, 33 U.S.C. § 1351 et
seq. ("CWA"), and for various related federal and state law
claims. See Dkt. No. 94.
Plaintiffs filed their Initial Complaint in this matter on
October 14, 2011. See Dkt. No. 1. The Initial Complaint
consisted of 534 enumerated paragraphs, spanned 174 pages,
alleged thirteen (13) counts, and named thirteen (13)
Defendants. Id. On October 28, 2011, Plaintiffs filed their
First Amended Complaint, which modified rather than supplanted
their Initial Complaint. See Dkt. No. 12. In response to
Plaintiffs' Initial and First Amended Complaints, many
Defendants moved this Court, pursuant Federal Rule of Civil
Procedure 12(f), to strike Plaintiffs' pleadings for noncompliance with Rule 8(a) (2)'s "short and plain statement"
requirement. See Dkt. Nos. 10, 26.
The Magistrate Judge recommended, and this Court concurred,
that Plaintiffs' Initial and First Amended Complaints were
impermissibly pled in shotgun fashion. See Dkt. Nos. 63, 90.
Consequently, this Court required that Plaintiffs re-plead their
complaint. Dkt. No. 90.
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Plaintiffs' filed their Second Amended Complaint
(hereinafter referred to as "Complaint") on March 8, 2012. See
Dkt. No. 94. Plaintiffs' Complaint is shorter than its
predecessors but far from concise. Plaintiffs name twelve (12)
Defendants and list thirteen (13) causes of action.
A. Parties
Plaintiffs are Jones Creek Investors, LLC ("JOl") and
Savannah Riverkeeper, Inc. ("Savannah Riverkeeper")
For simplicity, the named Defendants are divided into five
(5) groups:
' Columbia County, Georgia (the "County");
CSX (comprised of CSX Transportation, Inc.);
• the Marshall Defendants (Marshall Square, LLC f/d/b/a
NBR Investments, LLC ("Marshall Square, LLC"); D.C.
Lawrence Commercial Real Estate, LLC ("D.C.
Lawrence"); the Marshall Square Property Owner's
Association, Inc. ("Marshall Square POA") ; Joseph H.
Marshall, III ("Joseph Marshall"); and Donald
Lawrence);
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. the Krystal River Defendants (comprised of Kimlandco,
LLC; Southern Site Design, LLC; and Robert F.
Mullins); and
the Townhome Defendants (comprised of Jones Creek
Partners, LLC, and Bruce Lyons)
On January 15, 2013, this Court granted a consent decree
between Plaintiff JCI and the Krystal River Defendants. See
Dkt. No. 204. That decree dismissed all claims against the
Krystal River Defendants. See Dkt. No. 189-1.
On March 27, 2013, this Court granted a consent decree
between Plaintiff JOT and the Townhome Defendants. See Dkt. No.
227. That decree dismissed all claims against the Townhome
Defendants. See Dkt. No. 211-1. Accordingly, the only
remaining Defendants are the County, CSX, and the five (5)
Marshall Defendants.
B. Causes of Action
The causes of action asserted against the various
Defendants are as follows:
For simplicity, the Court does not name Defendants that have been dismissed
from the action.
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• Count 1: Violation of the CW?\ by discharging
pollutants from the Columbia County Municipal Separate
Storm Sewer System. Plaintiffs assert this claim
against the County.
• Count 2: Violation of the OWA by discharge of
pollutants from upstream properties. Plaintiff JCI
asserts this claim against the County and the Marshall
Defendants.
• Count 3: Violation of the CWA by filling
jurisdictional waters and wetlands. Plaintiff JCI
asserts this claim against all Defendants.
• Count 4: Nuisance by excessive water discharge.
Plaintiff JCI asserts this claim against all Marshall
Defendants other than Marshall Square POA.
• Count 5: Injunctive Relief. Plaintiff JCI asserts
this claim against all Marshall Defendants other than
Marshall Square PCA.
• Count 6: Nuisance by conditions at CSX Crossing.
Plaintiff JCI asserts this claim against CSX.
• Count 7: Trespass. Plaintiff JCI asserts this claim
against CSX and the Marshall Defendants.
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• Count 8: Negligence. Plaintiff JCI asserts this
claim against CSX and the Marshall Defendants.
• Count 9: Negligence per
Se.
Plaintiff JCI asserts
this claim against CSX and the Marshall Defendants.
• Count 10: Inverse condemnation. Plaintiff JCI
asserts this claim against the County and CSX. 2
• Count 11: Takings. Plaintiff JCI asserts this claim
against the County and CSX. 3
• Count 12: Punitive damages. Plaintiff JCI asserts
this claim against CSX and the Marshall Defendants.
• Count 13: Attorney's fees. Plaintiff JCI asserts this
claim against all Defendants.
The moving Defendants seek dismissal of all claims that
pertain to them. See Dkt. Nos. 103, 104. The Marshall
Defendants' Motion to Dismiss implicates Counts 2-5, 7-9, and
12-13. See Dkt. No. 103. CSX's Motion to Dismiss implicates
Counts 3 and 6-13. See Dkt. No. 104. The County has not moved
to dismiss the Complaint.
2
Plaintiff brings Count 10 against CSX in the alternative to Counts 6-9.
Plaintiff brings Count 11 in the alternative to Count 10.
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II. FACTUAL BACKGROUND
For purposes of the motions to dismiss, the allegations in
Plaintiffs' Complaint are taken as true. Mohamad v. Palestinian
Auth., 132 S. Ct. 1702, 1705 (2012).
Plaintiff JCI is a Georgia limited liability company that
owns and operates the Jones Creek Golf Course ("Golf Course") .
Dkt. No. 94, at ¶ 6. The Golf Course is a nearly 200 acre
course located in Evans, Columbia County, Georgia. Id. 91 25.
It is more than twenty (20) years old. Id. Central features of
the Golf Course are Willow Lake and Willow Lake's attendant
wetlands and tributary streams, including Jones Creek. 5 Id.
¶ 26. Willow Lake is more than six (6) acres at full pool. Id.
It serves as an aesthetic feature of the Golf Course, a
recreational resource for the residents, and the sole water
supply/source of irrigation for the Golf Course. Id. ¶91 26-27.
The other Plaintiff i.n this action is Savannah Riverkeeper. Dkt. No. 94
¶ 7. Neither pending motion implicates Savannah Riverkeeper's claim (Count
1).
Willow Lake has two (2) primary tributary streams. Id. ¶ 28. Tributary 1
merges with Jones Creek 300 feet upstream of Willow Lake. Id. Jones Creek
flows into Willow Lake. Id. The other tributary stream originates to the
southeast of the Golf Course and flows through the course to Willow Lake. Id.
Jones Creek flows from Willow Lake 1.3 miles to the Savannah River. Id.
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JCI's claims arise from damages to the Golf Course,
including damages to the Golf Course's water sources. Id. 9191
38-39. JCI contends, inter alia, that the moving Defendants
caused significant harm to its property through their upstream
activities. More specifically, JCI contends that visual
observations, as well as water quality testing, reveal that
Willow Lake and its tributaries received and continue to receive
excessive amounts of sediment, eroded soils, rock, dirt, sand,
sediment-laden storm water, and other debris from the activities
of the Marshall Defendants, CSX, and other sources. Id. ¶ 39.
A. Facts Pertaininq to the Marshall Defendants
The Marshall Square Planned Unit Development ("Marshall
Square PUD") is a mixed-use, residential and commercial
community in Columbia County, Georgia. It is owned by Defendant
Marshall Square, LLC. Defendants Marshall Square, LLC; D.C.
Lawrence; Joseph Marshall; and Donald Lawrence commenced
construction and development of Marshall Square PUD on or before
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July 2008.6 Id. ¶ 114. Land disturbing and development
activities continue at Marshall Square PUG. Id. ¶ 115.
On September 30, 2008, some or all of the Marshall
Defendants filed a Notice of Intent for coverage ("NOl") under
their GAR100003 permit 7 for construction activities at Marshall
Square PUD. 8 Id. ¶ 97. The NOT is a state permit that regulates
storm water discharges. On March 3, 2009, some or all of the
Marshall Defendants filed a Notice of Termination ("NOT") to
terminate coverage under the GAR100003 permit. Id. ¶ 131.
Plaintiffs allege that the NOT was improperly filed because the
Marshall Square PUD was not stabilized, as required by the
GAR100003 permit. Id. Consequently, the GAR100003 permit
6
Defendant Joseph Marshall is a member and manager of Marshall Square, LLC.
Id. ¶ 103; Dkt. No. 103-1, at 2-3. He directs the company's financial
affairs. Dkt. No. 103-1, at 2-3. D.C. Lawrence is a real estate company
involved in the sale of sub-parcels of Marshall Square POD. Id. at 3.
Defendant Donald Lawrence is a member and manager of D.C. Lawrence. Id.
Defendant Marshall Square POA is the owner of the large detention pond
located in Marshall Square POD. Dkt. No. 94 ¶ 99.
GAR100003 is the NPDES General Storm Water construction permit issued by the
Georgia Environmental Protection Division. Dkt. No. 103-1, at 7 n.3. The
permit authorizes storm water discharges from construction activities
associated with "Common Developments." Id.
8
NBR Investments, LLC is identified as the owner of Marshall Square POD on
the 2008 NOl even though it became Marshall Square, LLC in 2008. Dkt. No. 94
¶ 98. Defendant Joseph Marshall signed the 2008 NOl as a member of "Marshall
Square" in the signature space provided for the owner. Id. ¶ 102. The NOl
identifies Donald Lawrence as the facility contact. Id.
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remains active, and the Marshall Defendants are in continued
violation of its provisions.
JCI's claims against the Marshall Defendants pertain to
alleged upstream activities which occurred, and continue to
occur, at Marshall Square PUD. Marshall Square PUD is allegedly
a source of pollutants that currently flow onto JCI's property
in violation of federal and state law. Id. ¶ 17. More
specifically, the Marshall Defendants allegedly failed to
prevent rainwater from leaving Marshall Square PUD, flowing
through Jones Creek, and settling in Willow Lake. Additionally,
the Marshall Defendants' alleged failure to properly maintain
structures in the stream and the Marshall Defendants' clearing,
development, and/or construction activities at Marshall Square
PUD resulted in dredging and/or filling of navigable U.S.
waters.
Id. ¶ 251.
B. Facts Pertaining to CSX
CSX owns the OSX Crossing. Id. ¶ 61. OSX Crossing is
located upstream from Willow Lake on Tributary 1. Id. ¶ 60.
"CSX Crossing" is the embankment and culverts across
Tributary 1, including a failed brick culvert and two (2) pipe
culverts. Id.
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On January 26, 2010, the County inspected CSX Crossing.
Id. ¶ 62. The inspection showed that CSX Crossing's brick
culvert deteriorated to the point of failure. Id. The
inspection also showed that portions of the culvert caved in.
Id. The culvert's failure caused the Crossing's embankment to
fail. See id. ¶ 64. The failure of the brick culvert and
embankment resulted in the discharge of significant amounts of
sediment and rock from CSX Crossing into Tributary 1. Id. This
discharged sediment and rock ultimately made their way into
Jones Creek and Willow Lake. Id.
CSX's alleged failure to inspect, maintain, or repair CSX
Crossing in an adequate or timely manner, caused eroded soil and
sediment to discharge into Tributary 1, Jones Creek, and Willow
Lake during every post-failure rain event. Id. These
discharges continued until the culvert was replaced in June
2010.
Id. 191 64-65.
The brick culvert's failure did not stop the movement of
passengers or property by CSX. Id. ¶ 63.
Pollutant discharges from CSX Crossing to Willow Lake
allegedly filled in a significant volume of Willow Lake with
sediment. Id. ¶91 182-83. This fill reduced the lake's water
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quality and water storage volume. Id. Plaintiffs allege that
this fill remains unremediated. Id.
JOl's claims against CSX are predicated on damages that JOl
allegedly sustained as a result of (1) CSX's failure to maintain
and/or repair CSX Crossing and its brick culvert and
(2) subsequent inadequacies in the Crossing's replacement.
III. LEGAL STANDARD
A. Rule 12(b)(1
Federal courts have limited jurisdiction. Ishler v.
Internal Revenue, 237 F. App'x 394, 395 (11th Cir. 2007) (citing
Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974 (11th Cir.
2005)) . The plaintiff bears the burden of establishing the
court's subject matter jurisdiction. Id. (citation omitted)
A motion to dismiss brought pursuant to Rule 12(b) (1) of
the Federal Rules of Civil Procedure may challenge the court's
subject matter jurisdiction based on the face of the pleadings
or the substantive facts of the case. Morrison v. Amway Corp.,
323 F.3d 920, 924 n.5 (11th Cir. 2003). When addressing a
facial challenge, allegations in the plaintiff's complaint are
taken as true, and the court determines whether the complaint
sufficiently alleges a basis for subject matter jurisdiction.
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Scarfo v. Ginsberg, 175 F.3d 957, 960 (11th Cir. 1999) (citing
Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)). The
complaint may be dismissed on a facial attack only "if it is
clear that no relief could be granted under any set of facts
that could be proved consistent with the allegations." Jackson
v. Okaloosa Cnty., Fla., 21 F.3d 1531, 1536 n.5 (11th Cir. 1994)
(citation omitted)
When addressing a factual challenge, a court 'is free to
weigh the evidence and satisfy itself as to the existence of its
power to hear the case." See Lawrence, 919 F.2d at 1528-29
(quoting Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.
1981)); see also Scarfo, 175 F.3d at 960
("[M]atters outside the
pleadings, such as testimony and affidavits, are considered.")
Therefore, the presumption of truthfulness afforded a plaintiff
under Federal Rule of Civil Procedure 12(b) (6) does not attach
to a factual challenge to the court's subject matter
jurisdiction. See Scarfo, 175 F.3d at 960.
In considering a motion to dismiss brought pursuant to Rule
12(b) (6) of the Federal Rules of Civil Procedure, the district
court must "construe[] the complaint in the light most favorable
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to the plaintiff and accept[] all well-pled facts alleged . - in the complaint as true." Sinaltrainal v. Coca-Cola Co., 578
F.3d 1252, 1260 (11th Cir. 2009) . To survive a motion to
dismiss for failure to state a claim under Rule 12(b) (6), a
complaint need not contain "detailed factual allegations" but
must include enough facts to raise a right to relief above the
"speculative level." Bell Ati. Corp. v. Twombly, 550 U.S. 544,
555 (2007) . The complaint must allege "enough facts to state a
claim to relief that is plausible on its face" meaning that the
factual content "allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Speaker v. U.S. Dep't of Health & Human Servs., 623
F.3d 1371, 1380 (11th Cir. 2010).
IV. DISCUSSION
Plaintiffs claim that the Marshall Defendants and CSX
violated the OWA and various other federal and state laws. The
Marshall Defendants and OSX contend that this Court lacks
subject matter jurisdiction over JCI's Clean Water Act claims.
In the alternative, the moving Defendants assert that certain
claims fail to meet the standard required by Rule 12(b) (6) . The
moving Defendants' specific challenges are addressed below.
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A. Counts 2 and 3: Clean Water Act Claims
1. Clean Water Act
Congress enacted the Clean Water Act "to restore and
maintain the chemical, physical, and biological integrity" of
the waters of the United States. 33 U.S.C. § 1251(a). The CWA
makes it illegal to introduce pollutants from any point source
into the navigable waters of the United States without a permit.
Id. §§ 1311(a), 1342. A "pollutant" is defined as "dredged
spoil, solid waste, incinerator residue, sewage, garbage, sewage
sludge, munitions, chemical wastes, biological materials,
radioactive materials, heat, wrecked or discarded equipment,
rock, sand, cellar dirt and industrial, municipal, and
agricultural waste discharged into water." Id. § 1362(6).
"Navigable waters" are "the waters of the United States,
including the territorial seas." Id. § 1362(7). "Point source"
means "any discernible, confined and discrete conveyance,
including but not limited to any pipe, ditch, channel, tunnel,
conduit, well, discrete fissure, container, rolling stock,
concentrated animal feeding operation, or vessel or other
floating craft, from which pollutants are or may be discharged."
Id. § 1362(14).
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Section 301 is the "cornerstone" of the OWA. That section
prohibits all discharges of any pollutant other than those that
comply with specified provisions of the CWA. Id. § 1311; Se.
Alaska Conservation Council v. U.S. Army Corps of Eng'rs, 486
F.3d 638, 645 (9th Cir. 2007), rev'd and remanded sub nom. on
other qrounds by Coeur Alaska, Inc. v. Se. Alaska Conservation
Council, 557 U.S. 261 (2009) . CWA § 402 establishes the
National Pollutant Discharge Elimination System ("NPDES") . 33
U.S.C. § 1342. The NPDES requires a permit for any discharge of
any pollutant from a point source into waters of the United
States. Id. The NPDES also requires compliance with that
permit. Id.
The Administrator of the Environmental Protection Agency
("EPA") has initial authority to issue NPDES permits. Id.
§ 1342 (a) . However, the CWA allows each state to establish its
own NPDES permit program if that program "meets the standards
set forth in the Clean Water Act and is approved by the
Administrator of the EPA." Black Warrior RiverkeeDer. Inc. v.
Cherokee Mining, LLC, 548 F.3d 986, 989 (11th Cir. 2008) (citing
33 U.S.C. § 1342(b))
An entity's failure to comply with the conditions of either
the EPA- or state-issued NPDES permit subjects the entity to
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civil, criminal, or administrative enforcement proceedings and
sanctions. Id. (citing 33 U.S.C. § 1319). The EPA and the
appropriate state authorities can enforce compliance with stateissued permits. Id. In certain circumstances, a private
citizen can sue violators of EPA- or state-issued NPDES permits.
Id.; 33 U.S.C. § 1365(a).
Specifically, citizens may file suit "against any person
who is alleged to be in violation of . . . an effluent
standard or limitation under [33 U.S.C. Chapter 26] . . . •" 33
U.S.C. § 1365(a). "[C]itizens . . . may seek civil penalties
only in a suit brought to enjoin or otherwise abate an ongoing
violation." Gwaltney of Smithfield, Ltd. v. Chesajeake Ba
Found., 484 U.S. 49, 59 (1987). Therefore, citizen-plaintiffs
must "allege a state of either continuous or intermittent
violation—that is, a reasonable likelihood that a past polluter
will continue to pollute in the future." Id. at 57.
Consequently, to establish jurisdiction, citizen-plaintiffs must
"make a good-faith allegation of continuous or intermittent
violation[s]. " Id. at 64; see also Atl. States Legal Found. v.
Tyson Foods, Inc., 897 F.2d 1128, 1133 (11th Cir. 1990) ("'The
Supreme Court stressed that citizen-plaintiffs need not prove
their allegations of ongoing noncompliance before jurisdiction
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attaches under section 505. Instead, a good faith allegation of
violations that continued at the time suit was filed is
sufficient for jurisdictional purposes." (emphasis in original)
(citation omitted)) . In short, a plaintiff can bring a CWA
claim based on "ongoing" violations; however, a plaintiff cannot
bring such a claim based on "wholly past" violations. Gwaltney,
Courts have struggled to apply the Supreme Court's holding
in Gwaltney because the Supreme Court "did not define the point
at which an 'ongoing' violation becomes 'wholly past.'" City of
Mountain Park, Ga. v. Lakeside at Ansley, LLC, 560 F. Supp. 2d
1288, 1293 (N.D. Ga. 2008) ("Mountain Park") . This unresolved
issue is the thrust of the moving Defendants' contention that
this Court lacks subject matter jurisdiction over JCI's CWA
claims.
2.
Count 2: Upstream Discharge (Against the Marshall
Defendants)
In Count 2, Plaintiff JCI asserts that the Marshall
Defendants violated and continue to violate CWA §§ 301 and 402.
See Dkt. No. 94 ¶I 231-44. JCI's § 301 claim alleges that the
Marshall Defendants are unlawfully discharging without a permit.
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JCI's § 402 claim alleges that the Marshall Defendants are
discharging in violation of their permit. See Dkt. No. 119,
at 7.
The Marshall Defendants are allegedly in violation of their
GAR100003 permit. Specifically, JCI contends that the Marshall
Defendants violate this permit by failing to maintain erosion
control Best Management Practices, violating water quality
standards set forth in the permit, and failing to comply with
applicable nephelometric turbidity unit ("NTU") levels.
Specifically, JCI contends that '[t]he failure to properly
implement and maintain structures, land disturbing, development,
and/or construction activities at . . . Marshall Square [PUD]
has resulted in the past, present and ongoing discharge of
pollutants including sediment, sand, rock, dirt, eroded soil,
debris, pollutant laden storm water and other substances into
waters of the United States." Dkt. No. 94 ¶ 238. Thus, JCI
alleges that such "activities undertaken at . . - Marshall
Square [PUD] have resulted in discharges of pollutants and
pollutant laden storm water in violation [the applicable permit
and the CWA] for discharges into waters of the United States
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either without the required NPDES permit or in violation of the
terms of the applicable NPDES permit." Dkt. No. 94 ¶ 239.
a. Subject Matter Jurisdiction
The Marshall Defendants assert that this Court lacks
subject matter jurisdiction. Specifically, the Defendants
assert that Plaintiffs failed to allege "ongoing" violations of
the OWA and that such failure prevents Plaintiffs from bringing
a citizen-suit. Dkt. No. 103-1, at 6-11. The Court disagrees.
Count 2 contains allegations that are sufficient to invoke
this Court's subject matter jurisdiction. In Gwaltney, the
Supreme Court "stressed that citizen-plaintiffs need not grove
their allegations of ongoing noncompliance before jurisdiction
attaches under section 505." Tyson Foods, 897 F.2d at 1133
(emphasis in original) . Rather, "a good faith allegation of
violations that continued at the time suit was filed is
sufficient for jurisdictional purposes." Id. (citing Gwaltney,
484 U.S. at 64) . Plaintiffs made good faith allegations of an
JCI provides additional detailed allegations regarding non-compliance with
specific portions of the GAR100003 permit. See Dkt. No. 94 ¶[ 117, 119-128.
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ongoing violation. Accordingly, the Court has subject matter
jurisdiction over Count 2.
The Marshall Defendants contend that any alleged violation
of their § 402 Georgia general storm water permit is "wholly
past."
Dkt. No. 103-1, at 7. The Marshall Defendants make two
(2) arguments. First, "none of the Marshall Defendants own or
operate any parcels upon which land disturbance or construction
activities are occurring." Id. Second, the permitee, Marshall
Square, LLC, terminated its general storm water permit before
the Plaintiffs provided notice of or filed this action. Id.
i. Ownership & Operation
Taking the allegations in Plaintiffs' Complaint as true,
the Marshall Defendants are owners and/or operators of land
where the alleged CWA violations occurred. See Dkt. No. 94
¶ 17. Specifically, Marshall Square, LLC, was identified as the
owner of Marshall Square PUD in 2008. Id. ¶ 98. Marshall POA
owns the large detention pond at Marshall Square PUD. Id. ¶ 99.
D.C. Lawrence is identified as the operator of Marshall Square
at least through March 2009. Id. 9[91 97, 106. Joseph Marshall
signed the 2008 NOl in the signature space provided for the
owner. Id. ¶ 102. Donald Lawrence is Marshall Square PUD's
facility contact. Id.
Moreover, in their own briefing,
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Defendants state that the "Complaint asserts . . - factual
allegations against them in their capacities as owners,
managers, agents, or contact persons for Marshall Square LLC."
Dkt. No. 103-1, at 17.
ii. Terminated Permit
The Marshall Defendants argue that the GAR100003 permit
ceased to be applicable when (1) the permittee, Marshall Square,
LLC, filed a NOT with the proper permitting authority and
(2) construction activities concluded. Id. at 8-9. According
to the Marshall Defendants, once a permit is terminated and
construction activities cease, there is no longer an NPDES
permit covering the construction activities. Id. at 9.
The Marshall Defendants' argument that their GAR100003
permit is inactive contradicts the facts asserted in Plaintiffs'
Complaint. Plaintiffs acknowledge that Marshall Square, LLC,
filed a certified NOT of its GAR100003 permit more than two (2)
years before Plaintiffs filed their Notice of Intent to sue.
See Dkt. No. 94 ¶91 3, 131. However, Plaintiffs contend that the
NOT was improperly filed because the site was not fully
stabilized as required by the permit. Id. ¶ 131. Specifically,
JCI contends that a NOT for a GAR100003 permit may be properly
submitted only "after all construction activities have ceased
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for a minimum of 90 days, final stabilization has been
implemented by the primary permittee and by all secondary
permittee(s) -
. and the site is in compliance with [the
GAR100003 permit]." Dkt. No. 119, at 10 (citing GAR100003, Part
VI (A)
Plaintiffs' allegation of non-compliance with the
requirements to file for a NOT necessarily implies that the
permit was not terminated. Consequently, Plaintiffs' Complaint
sets forth sufficient factual information to support their claim
that the GAR100003 permit remains active.
The Marshall Defendants' argument that construction
activities ended is similarly unpersuasive. First, the argument
is contrary to the allegations in Plaintiffs' Complaint. See
Dkt. No. 94 ¶91 115, 235. Second, the argument fails to consider
Plaintiffs' allegation that the Marshall Defendants continue to
violate the active GAR100003 permit. See Id. 191 117, 119-128.
The Marshall Defendants submit that the "Plaintiffs cannot
dispute that the construction and land disturbance activities
covered by the permit had ceased by [March 3, 2009], despite
their claim that '[l]and disturbing and development activities
are ongoing at Marshall Square.'" Dkt. No. 103, at 10 (citing
Dkt. No. 94 91 115) . The infirmity of the Marshall Defendants'
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argument is—as the Marshall Defendants acknowledge through
citation to Plaintiffs' Complaint—that Plaintiffs can, and
have, alleged an ongoing violation of an active GAR100003
permit.
The Court is obligated to accept as true the well-pled
allegations set forth in Plaintiffs' Complaint. Mohamad v.
Palestinian Auth., 132 S. Ct. 1702, 1705 (2012). Thus, the
Court must accept that the Marshall Defendants failed to
properly terminate the GAR100003 permit.' ° The Court must also
accept that the Marshall Defendants have and continue to violate
the active GAR100003 permit. Dkt. No. 94 ¶I 117, 119-128.
Taking Plaintiffs' allegations as true, Plaintiffs Complaint
makes a "good-faith allegation of continuous or intermittent
violation" of the CWA by the Marshall Defendants. Gwaltney, 484
U.S. at 64. Thus, this Court has subject matter jurisdiction
over Count 2. Consequently, the Marshall Defendants' motion to
° The Marshall Defendants opine that "the ability of a permittee to terminate
the coverage of a construction permit would be rendered meaningless if any
party could undermine any Notice of Termination by pleading years later that
the certified, filed Notice of Termination was inadequate." Dkt. No. 103-1,
at 10. The Court acknowledges the import of this argument but notes that
various other mechanisms exist to prevent bad faith allegations in this
Context.
24
AO 72A
(Rev. 8/82)
dismiss Count 2 for lack of subject matter jurisdiction is
DENIED.
b. Notice of Intent to Sue
The Marshall Defendants contend that, to the extent that
Count 2 alleges that the Marshall Defendants violated § 301,
such claim should be dismissed. Specifically, the Defendants
argue that the Court lacks subject matter jurisdiction because
Plaintiffs failed to comply with the CWA's notice requirements.
Dkt. No. 103-1, at 14.
i. Legal Standard
CWA § 505 dictates that no action may be commenced prior to
sixty days (60) after the plaintiff has given notice of the
alleged violation to any alleged violator of the standard,
limitation, or order. 33 U.S.C. § 1365(b) (1) (A). The EPA has
provided further instruction regarding the contents of such
notice:
Notice regarding an alleged violation of an effluent
standard or limitation or of an order with respect
thereto, shall include sufficient information to
permit the recipient to identify the specific
standard, limitation, or order alleged to have been
violated, the activity alleged to constitute a
violation, the person or persons responsible for the
alleged violation, the location of the alleged
violation, the date or dates of such violation, and
25
AO 72A
(Rev. 8/82)
the full name, address, and telephone number of the
person giving notice.
40 C.F.R. § 135.3(a). The Eleventh Circuit has held that notice
under the CWA "is a mandatory condition precedent to the filing
of a citizen suit under the Clean Water Act. If a plaintiff
fails to comply with this notice requirement . . . , the
district court is required to dismiss the action." Nat'l Envtl.
Found. v. ABC Rail Corp., 926 F.2d 1096, 1097-98 (11th Cir.
1991) . The notice requirement is "strictly construed to give
the alleged violator the opportunity to correct the problem
before a lawsuit is filed." Nat'l Parks & Conservation Ass'n,
Inc. v. Tenn. Valley Auth., 502 F.3d 1316, 1329 (11th Cir.
2007)
ii. Application
The Marshall Defendants admit that they received a notice
letter from Plaintiffs more than sixty (60) days prior to the
filing of the original Complaint. However, they contest the
sufficiency of the notice. Specifically, the Marshall
Defendants assert that they were not properly notified of a
§ 301 claim. In particular, the Marshal Defendants argue that
Plaintiffs' May 16, 2011, and December 6, 2011, Notices of
Intent to sue only allege that the Marshall Defendants
discharged in violation of a permit pursuant to § 402. The
26
AO 72A
(Rev. 8/82)
Defendants contend that the notices failed to provide notice of
a potential § 301 violation. Dkt. No. 103-1, at 15-16. Upon
examination of the actual notice given, Defendants' argument
fails.
In pertinent part, Plaintiffs' May 16, 2011, Notice of
Intent to Sue letter stated "[t]he Marshall Square Defendants
have violated and continue to violate the Clean Water Act
§§ 301, 402, and 404 by discharging pollutants from the Marshall
Square Site into jurisdictional waters." Dkt. No. 94-5, at 5.
The letter further stated that "[u]nder CWA § 301, 33 U.S.C.
§ 1311, the discharge of any pollutant into waters of the United
States from a point source without a permit or while violating a
NPDES permit is illegal." Id.
The purpose of the notice requirement is "to give [an
alleged violator] an opportunity to bring itself into complete
compliance with the [CWA] and thus likewise render unnecessary a
citizen suit." Gwaltney, 484 U.S. at 60. Plaintiffs' letter
did just that. Specifically, Plaintiffs put the Marshall
Defendants on notice that that their conduct violated § 301.
The Marshall Defendants further argue that no factual
allegations in the letter are tied to the allegation that they
had violated § 301 by discharging without a permit. Dkt. No.
27
AO 72A
(Rev. 8/82)
103-1, at 16. The discharging activities are the same, however,
whether § 301 or § 402 applies. That is, the only practical
difference in this case is that, if the permit was properly
terminated, Plaintiffs allege a § 301 claim, and if the permit
was not properly terminated, Plaintiffs allege a § 402 claim.
The nature of the allegedly unlawful discharge remains the same
for either claim.
Plaintiffs' notification of this alleged unlawful discharge
in the alternative (e.g., the discharge violated either § 301 or
§ 402) does not change the outcome. In analyzing a similar
notice of intent to sue letter, a District Court concluded that
providing notice in the alternative in this specific context was
adequate. Purvis v. Douglasville Dev., LLC, No. 1:06CV0415 WSD,
2006 WL 3709610, at *4 (N.D. Ga. Nov. 9, 2006). This Court
agrees with that court's reasoning. Specifically, that court
stated:
The allegation, although disjunctive, put Defendant on
notice that it should investigate whether the level of
pollutants—specifically sediment, sand, rock, and
dirt—being discharged by its activities around the
Tributary . . . violated a permit requirement or
exceeded a permit in Defendant's possession. This
portion of the notice inform[ed] Defendant about two
specific, if alternative, wrongs it may be committing
based on the same alleged conduct, [gave] Defendant
AO 72A
(Rev. 8/82)
sufficient notice to identify the pertinent aspects of
the alleged violation, and is thus sufficient.
Id. A similar outcome is warranted here. Consequently, the
Marshall Defendants' motion to dismiss Count 2 for insufficient
notice is DENIED.
3.
Count 3: Filling Jurisdictional Waters (Against CSX and
the Marshall Defendants)
In Count 3, Plaintiffs allege that the moving Defendants
violated CWA § 404 by dredging, filling, or altering the natural
and/or existing course and flow of jurisdictional waters without
a permit to do so or in violation of an applicable permit. Dkt.
No. 94 ¶ 247. Plaintiffs further allege that the moving
Defendants violated CWA § 404 by allowing such conditions to
remain unremediated. Id. JCI also contends that CSX's failure
to correct or ameliorate culvert and embankment failures and
CSX's subsequent construction activities at CSX Crossing
resulted in the discharge of dredged or fill material into
navigable U.S. waters. Id. ¶ 250. Likewise, JCI contends that
the Marshall Defendants' failure to properly maintain structures
in the stream, and their clearing, development, and/or
construction activities resulted in the discharge of dredged or
fill material into navigable U.S. waters. Id. ¶ 251. Unlike
29
AO 72A
(Rev. 8/82)
CSX, the Marshall Defendants are allegedly continuing to fill
jurisdictional waters without a § 404 permit. Id. ¶I 247-55.
CWA § 505(a) (1) authorizes citizens to sue any person
alleged to be in violation of an "effluent standard or
limitation" as defined in CWA § 505(f). CWA § 404 gives the
Army Corp of Engineers authority to permit the discharge of
"dredged" or "fill" material into jurisdictional waters. JCI
alleges that CSX violated § 404 when it failed to obtain
authorization from the Army Corps of Engineers (1) before the
failed culvert was repaired and (2) when CSX replaced the failed
culvert.
CSX contends that this allegation is deficient under the
Supreme Court's holding in Gwaltney because both the omission
and the act occurred wholly in the past. Dkt. No. 104, at 5.
That is, the alleged violations occurred not later than June
2010, more than one (1) year before Plaintiffs' filed this suit.
Id. In response, JOl contends that dismissal is not warranted
because the Complaint makes a good faith allegation of CSX's
ongoing violations of the CWA due to the continuing presence of
its discharged pollutants, including eroded soils and sediment,
in jurisdictional waters. Dkt. No. 111, at 6-7.
30
AO 72A
(Rev. 8/82)
The Marshall Defendants also argue that Count 3 alleges
"wholly past" violations of the OWA. Dkt. No. 103-1, at 6-7.
In response, JCI provides the same argument that it does with
respect to CSX. Namely, JCI contends that the presence of
unlawful unremediated dredged and fill material constitutes a §
404 violation. See, e.g., Dkt. No. 94 ¶ 255
("[T]he maintenance
of failed structures, land disturbance, construction and/or
other development activities at . . . Marshall Square [PUD] have
resulted, and will continue to result, in the discharge of
dredged or fill material into navigable waters of the United
States . . . yet no dredge and fill permit has been secured
as required under Section 404 of the Clean Water Act.")
The Eleventh Circuit has not examined the issue before the
Court. That is, the Eleventh Circuit has not answered the
question: Under what circumstances, if any, does a continuing
violation of the CWA occur when the conduct that gave rise to
the violation has ceased but the violation's effects continue?
However, district courts within the Eleventh Circuit have
answered this question by analyzing and applying the high
court's holding in Gwaltney.
In support of their respective positions, each party
presented the Court with non-binding case law that supports
31
AO 72A
(Rev. 8/82)
their respective arguments. After careful consideration, the
Court finds JCI's authority more persuasive and, therefore,
determines that Count 3 is not subject to dismissal.
JCI submits that the overwhelming majority of decisions
examining this issue have held that the continued presence of
dredged or fill material constitutes an ongoing violation for
the purposes of the CWA. JCI's characterization is ambitious.
However, there is considerable support for its position. See,
e.g., Stillwater of Crown Point Homeowner's Ass'n, Inc.
V.
Kovich, 820 F. Supp. 2d 859, 895 (N.D. Ind. 2011) ("The Court
finds the weight of authority . . . to be persuasive that the
continued presence of fill material in the waterway constitutes
a continuing violation." (citation omitted)); Stepniak v. United
Materials, LLC, No. 03-CV-569A, 2009 WL 3077888, at
*4 (W.D.N.Y.
Sept. 24, 2009) ("The weight of authority supports plaintiffs'
position that the continued presence of fill material
constitutes a continuing violation." (citation omitted));
Swinomish Indian Tribal Cmty. v. Skagit Cnty. Dike Dist. No. 22,
618 F. Supp. 2d 1262, 1266 (W.D. Wash. 2008) ("The ongoing
presence of fill materials without a permit represents a
continuing violation of the CWA."); Mountain Park, 560 F. Supp.
2d at 1296 (holding that the continuing presence of illegally
AO 72A
(Rev. 8/82)
discharged fill material can constitute an "ongoing violation"
under Gwaltney); N.C. Wildlife Fed'n v. Woodbury, No. 87-584CIV-5, 1989 WL 106517, at *2 (E.IJ.N.C. Apr. 25, 1989) (holding
that the failure to remove unlawful fill material constitutes a
continuing violation of the CWA sufficient to confer federal
jurisdiction under the CWA's citizen-suit provision) . Cf.
Ogeechee-Canoochee Riverkeeper, Inc. v. T.C. Logging, Inc., No.
608CV064, 2009 WL 2390851, at *8 (S.D. Ga. Aug. 4, 2009)
(finding that an alleged CWA § 404 violation continues so long
as the fill remains because the violation is "continuing in
nature.")
In contrast, the moving Defendants ask the Court to follow
their interpretation of the Second Circuit's decision in Conn.
Coastal Fisherman's Ass'n v. Reminqton Arms Co., Inc. 989 F.2d
1305, 1313 (2d Cir. 1993) (finding that "[t]he present violation
requirement of the [CWA] would be completely undermined if a
violation included the mere decomposition of pollutants") . See
also Wilson v. Amoco Corp., 33 F. Supp. 2d 969, 975 (D. Wyo.
1998) (determining that "migration of residual contamination
from previous releases does not constitute an ongoing
discharge")
33
AO 72A
(Rev. 8/82)
The Northern District of Georgia extensively analyzed this
issue in Mountain Park. There, the court faced the difficult
problem that this Court now faces: determining when a violation
becomes "wholly past."
The court in Mountain Park noted that
Gwaltney "did not define the point at which an 'ongoing'
violation becomes 'wholly past.'" Mountain Park, 560 F. Supp.
2d at 1293. The court also noted that "[a]nswering this
question is especially difficult in cases - . . where the
conduct that gave rise to the violation has ceased, but the
effects continue." Id. In analyzing relevant case law, the
court ultimately surmised that cases involving fill materials
are consistently treated differently than those involving other
pollutants. That is,
The majority of cases dealing with fill materials
appear to adopt the approach taken in Woodbury of
deeming the pollution "ongoing" as long as the
polluting fill material remains in the water . .
In contrast, most of the decisions taking the stricter
interpretation of "wholly past" violations employed in
Remington have involved pollutants other than fill
materials.
Id. at 1296 (citations omitted)
The court reasoned that the distinction between fill
material and other pollutants was important because fill
materials "do not significantly dissipate or dissolve over
34
AO 72A
(Rev. 8/82)
time." Id. Rather, fill materials "stay intact over time and
thus continue to have roughly the same net polluting effect
years or even decades after the time of their deposit." Id.
Furthermore, the court in Mountain Park found that the
distinction between fill materials that do not dissipate or
dissolve and other pollutants was supported by Justice Scalia's
concurrence in Gwaltney. More specifically, the court noted
Justice Scalia's determination that a polluter remains "in
violation" of the CWA "so long as it has not put in place
remedial measures that clearly eliminate the cause of the
violation." Id. (citing Gwaltney, 484 U.S. at 69 (Scalia, J.
concurring) ) . The court, thus, determined that "the continuing
presence of illegally discharged fill material can constitute an
'ongoing violation' under Gwaltney." Id. at 1297.
After considering the various authorities on the issue,
this Court holds that the continued presence of illegally
discharged fill material in U.S. jurisdictional waters
constitutes a continuing violation. Specifically, the alleged
continued presence of unlawful fill materials within Willow Lake
constitutes an ongoing violation of § 404 of the OWA. Thus,
Plaintiffs have presented a "good-faith allegation of continuous
or intermittent violation" of the CWA by the moving Defendants.
AO 72A
(Rev. 8/82)
Gwaltney, 484 U.S. at 64. As such, this Court has subject
matter jurisdiction over Count 3. Consequently, the moving
Defendants' motion to dismiss Count 3 for lack of subject matter
jurisdiction is DENIED.
4.
Counts 2 and 3: CWA Violations (Against Marshall
Defendants other than Marshall Square, LLC)
The Marshall Defendants assert that Plaintiffs' CWA claims
(Counts 2 and 3) against D.C. Lawrence, Marshall Square POA,
Joseph Marshall, and Donald Lawrence should be dismissed.
Defendants' argument is as follows: Marshall Square, LLC, is
the permitee of the GAR100003 permit. As permitee, Marshall
Square, LLC, is the only person responsible for complying with
the conditions of the GAR100003 permit. Dkt. No. 103-1, at 2122. More specifically, the other Marshall Defendants cannot be
held liable for violations of the GAR100003 permit because the
permit was not issued to them individually. Id. at 21.
In response, Plaintiffs contend that D.C. Lawrence can be
held liable because it operated the Marshall Square PUD,
Marshall Square POA can be held liable because it owns the large
detention pond where discharges allegedly occurred, and Joseph
36
AO 72A
(Rev. 8/82)
Marshall and Donald Lawrence can be held liable because they are
responsible corporate officers. Dkt. No. 119, at 22-25.
a. Legal Standard
CWA § 505 permits a citizen-suit against "any person
who is alleged to be in violation of - - . an effluent standard
or limitation" under the CWA. 33 U.S.C. § 1365. "Person" is
defined as "an individual, corporation, partnership,
association, State, municipality, commission, or political
subdivision of a State, or any interstate body." Id. § 1362(5).
The Eleventh Circuit has not addressed whether the term
"person" includes corporate officers in the context of CWA
citizen-suits. Franklin v. Birmingham Hide & Tallow Co.,
No. CV 98-BU-0259-S, 1999 U.S. Dist. LEXIS 22489, at *43 (N.D.
Ala. Apr. 21, 1999) . However, several courts have addressed the
issue. Those courts determined that corporate officers can be
held liable in civil suits brought under 33 U.S.C. § 1365. See
Kovich, 820 F. Supp. 2d 859, 890-92 (N.D. Ind. 2011) (collecting
cases and finding "that the responsible corporate officer
doctrine extends to civil violations under the Clean Water
Act"); Draper v. H. Roberts Family LLC, No. 1:06-CV-3057-CC, at
*24 (N.D. Ga. March 30, 2009) (unpublished) (finding that
37
AO 72A
(Rev. 8/82)
citizens can be held individually liable in CWA citizen-suit
actions); Waterkeepers N. Cal. v. AG Indus. Mfg., Inc., No. CIVS-00-1967MCEPAN, 2005 WI 2001037, at *13 (E.D. Cal. Aug. 19,
2005) (denying individual defendant's summary judgment motion in
CWA action because "the responsible corporate officer doctrine
has been applied to both criminal and civil cases")
The Marshall Defendants' argument is similar to the
argument of the defendant in Franklin. There, the defendant
argued that he could not be personally liable for his company's
violation of a NPDES permit because the criminal penalties
provision of the CWA "specifically states that the term 'person'
shall mean, in addition to the definition contained in section
1362(5) of this title, any responsible corporate officer" and
the CWA's civil penalties provision did not contain such
language. Franklin, 1999 U.S. Dist. LEXIS 22489, at *45•
Therefore, the defendant argued, a responsible corporate officer
can only be held criminally—not civilly—liable. Id. The
Franklin court rejected this argument. Specifically, the court
stated that
[A] number of courts have found that corporate
officers who are responsible for violations of public
health statutes, including the CWA, may be both
civilly and criminally liable in their in their
individual capacity for such violations, not
ci
AO 72A
(Rev. 8/82)
withstanding that the wrongful actions were undertaken
on behalf of a corporate entity.
Id. at *43_44 (citing United States v. Gulf Park Water Co., 972
F. Supp. 1056 (S.D. Miss. 1997); United States v. Mac's Muffler
Shop, Inc., No. Civ. A. No. C85-138R, 1986 WL 15443 (N.D. Ga.
Nov. 4, 1986)
b. Application
This Court agrees with the preceding case law.
Specifically, this Court finds that corporate officers can be
held liable in civil suits brought under 33 U.S.C. § 1365.
Consequently, the Court finds that the permitee is not the only
person responsible for non-compliance with the permit. See
Franklin, 1999 U.S. Dist. LEXIS 22489.
First, dismissal of the OWA claims against D.C. Lawrence is
not warranted because D.C. Lawrence was the operator of Marshall
Square PUD. See Dkt. No. 94 ¶ 97; see also Beartooth Alliance
v. Crown Butte Mines, 904 F. Supp. 1168, 1175 (D. Mont. 1995)
(finding that, under the CWA,
"[a]n entity is an operator of a
facility where it has the power or capacity to (i) make timely
discovery of discharges, (ii) direct the activities of persons
who control the mechanisms causing the pollution, and
(iii) prevent and abate damage") (citing Apex Oil Co. v. United
39
AO 72A
(Rev. 8/82)
States, 530 F.3d 1291, 1293 (8th Cir. 1976)) . Thus, taking
Plaintiffs' facts as true, Defendant D.C. Lawrence was a
responsible corporate officer during the alleged CWA violations.
Consequently, D.C. Lawrence can be held civilly responsible for
alleged violations of the GAR100003 permit.
Second, dismissal of the CWA claims against Marshall Square
POA is not warranted because Marshall Square POA owns the large
detention pond located in Marshall Square PUD. This pond is
located in Marshall Square PUD. Dkt. No. 94 ¶ 99. It serves
the Marshall Square site. Id. Plaintiffs allege that (1) the
detention pond was inadequately planned, built, and maintained,
(2) the slopes above the large detention pond failed, (3) this
failure resulted in gully erosion on the pond's slopes, and
(4) the slope failure and resultant gully erosion prevents
retention of turbid water by the detention pond and results in
discharge from Marshall Square PUD into Tributary 1. Id. ¶ 124.
From Tributary 1, storm water runoff and discharge flows into
Jones Creek and, subsequently, into Willow Lake. Id. ¶ 116.
Consequently, the detention pond allegedly discharges debris in
violation of the CWA. As owner of the detention pond, Marshall
Square POA can be held civilly responsible for alleged
violations of the GAR100003 permit.
HE
AO 72A
(Rev. 8/82)
Third, dismissal of the CWA claims against Defendants
Joseph Marshall and Donald Lawrence is not warranted.
Plaintiffs' Complaint creates a plausible inference that these
individual Defendants may be personally liable as responsible
corporate officers for the alleged CWA violations. According to
Plaintiffs' Complaint, both individuals were responsible for
ensuring CWA compliance, were privy to CWA violations, and
failed to remedy those violations. Furthermore, both Joseph
Marshall and Donald Lawrence were allegedly involved with the
activities at Marshall Square PUD that resulted in CWA
violations. In particular, Joseph Marshall was the owner and
manager of Marshall Square PUD. Id. ¶91 102-03. Donald Lawrence
was the owner, developer, and contact on 2007 site plans for
Marshall Square PUD, including the site's Storm Drainage Plan
and the site's Erosion and Sedimentation Pollution Control Plan.
Id. ¶ 100. These facts create a plausible inference that
Defendants Joseph Marshall and Donald Lawrence were responsible
corporate officers during the alleged CWA violations.
Consequently, those individuals can be held civilly responsible
for alleged violations of the GAR100003 permit.
Corporate officers can be held liable in civil suits
brought under 33 U.S.C. § 1365. The Complaint creates a
41
AO 72A
(Rev. 8/82)
plausible inference that the individually named Defendants
violated the CWA in their capacities as corporate officers.
Consequently, the Marshall Defendants' motion to dismiss
Plaintiffs' CWA claims (Counts 2 and 3) against D.C. Lawrence,
Marshall Square POA, Joseph Marshall, and Donald Lawrence is
DENIED.
B. Count 11: Takings Claim against CSX
In Count 11, Plaintiffs' allege that CSX's actions and
omissions resulted in an unconstitutional taking of Plaintiff's
property. Id. ¶I 326-59. Plaintiffs also bring their claim
pursuant to 42 U.S.C. § 1983. Id. ¶I 350-51. Plaintiffs bring
Count 11 in the alternative to Count 10 (JCI's state inverse
condemnation claim) . Id. ¶ 326.
CSX asserts that Count 11 is not ripe and should be
dismissed. Dkt. No. 104, at 13-14. Count 11 should not be
dismissed.
1.
Legal Standard
The parties agree that "a federal takings claim does not
ripen until just compensation is denied through the procedures
the state has provided unless those procedures are unavailable
42
AO 72A
(Rev. 8/82)
or inadequate." Dkt. No. 111, at 16 (citing Williamson Cnt
Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S.
172 (1985)) . Thus, a would-be litigant cannot claim that it has
been denied "just compensation until [it has] exhausted any such
avenues of relief." Fields v. Sarasota Manatee Airport Auth.,
953 F.2d 1299, 1303 (11th Cir. 1992) (quoting Williamson Cnty.,
473 U.S. at 186) . Consequently, "if a State provides an
adequate procedure for seeking just compensation, the property
owner cannot claim a violation of the Just Compensation Clause
until it has used the procedure and been denied just
compensation." Williamson Cnty., 473 U.S. at 195.
The Georgia Constitution provides that "private property
shall not be taken or damaged for public purposes without just
and adequate compensation being first paid." Ga. Const. art. I,
§ III, ¶ I (a) . The government violates this constitutional
provision when it "has not directly proceeded to appropriate
title or possession of the property but has destroyed its actual
usefulness and value by reason of the de facto exercise of the
power of eminent domain." Fla. E. Coast Props., Inc. v. Metro.
Dade Cnty., 572 F.2d 1108, 1111 (5th Cir. 1978). A plaintiff
properly seeks redress for such a violation by asserting an
inverse condemnation claim. See id.; see also United States v.
43
AO 72A
(Rev. 8/82)
Clarke, 445 U.S. 253, 257 (1980) (defining an inverse
condemnation claim as "a cause of action against a governmental
defendant to recover the value of property which has been taken
in fact by the governmental defendant, even though no formal
exercise of the power of eminent domain has been attempted by
the taking agency" (emphasis omitted)
2. Application
Georgia law specifically provides property owners with a
claim for inverse condemnation. See Benton v. Savannah Airport
Comm'n, 555 S.E.2d 110, 111 (Ga. Ct. App. 2001) ("The State of
Georgia provides property owners an adequate procedure for
seeking just compensation in the form of an inverse condemnation
action." (footnote omitted)). Therefore, in Georgia, an
adequate procedure exists for property owners to obtain just
compensation for a taking.
Although JCI has not utilized Georgia's procedure for
obtaining just compensation for a taking, JCI is presently
utilizing that procedure. In Count 10, JCI asserts an inverse
condemnation claim. JCI brings Count 11 in the alternative to
Count 10. That is, Count 11 becomes ripe, if at all, only after
Count 10 is resolved.
NO
AO 72A
(Rev. 8/82)
Judicial economy supports JCI's alternative pleading. See
San Remo Hotel, L.P. v. City & Cnty. of S.F., Cal., 545 U.S.
323, 346 (2005) ("Reading Williamson County to preclude
plaintiffs from raising [state and federal takings] claims in
the alternative would erroneously . . . require[e] property
owners to resort to piecemeal litigation or otherwise unfair
procedures." (internal citations and quotation marks omitted)).
CSX argues that a plaintiff can only assert such claims in
the alternative in state court. See Dkt. No. 123, at 15-18
(citing San Remo for the proposition that "[t]he requirement
[to] . . . seek compensation through the procedures the State
has provided . . . does not preclude state courts from hearing"
a plaintiff's state law and federal constitutional claims in the
alternative (emphasis added)) . CSX further argues that federal
courts ''are not in the same position [as state courts] if there
is no other basis for federal jurisdiction." Id. at 16
(emphasis added) . However, this Court has original jurisdiction
over Plaintiffs' CWA claims. See supra Part IV.A.
Consequently, the Court can exercise supplemental jurisdiction
over Plaintiffs' related claims, including Count 10. See 28
U.S.C. § 1367. With jurisdiction over Count 10, the Court can
and will—in the interest of judicial economy and consistent
AO 72A
(Rev. 8/82)
with the reasoning of the Supreme Court in San Remo—retain
jurisdiction over Count 11 in the alternative. Because
Plaintiffs pled Count 11 in the alternative to Count 10, Count
11 will ripen, if at all, after Count 10 is resolved.
Consequently, CSX's motion to dismiss Count 11 is DENIED.
C. Preemption of State Law Claims Auainst CSX
CSX contends that the Interstate Commerce Commission
Termination Act of 1995
(ICCTA"),
49 U.S.C. § 10101 et seq.,
expressly preempts JCI's state law tort claims. At this stage
in the proceedings, the Court disagrees.
1.
Legal Standard
In passing the
ICCTA,
Congress expressly preempted state
law regulation of rail transportation. Congress granted the
Surface Transportation Board ("STB") exclusive jurisdiction over
rail transportation, rail carriers, and rail facilities. 49
U.S.C. § 10501(a) (2)(b). Specifically, the ICCTA provides the
STB with exclusive jurisdiction over:
(1) transportation by rail carriers, and the remedies
provided in this part with respect to rates,
classifications, rules (including car service,
interchange, and other operating rules),
practices, routes, services, and facilities of
such carriers; and
46
AO 72A
(Rev. 8/82)
(2) the construction, acquisition, operation,
abandonment, or discontinuance of spur,
industrial, team, switching, or side tracks, or
facilities, even if the tracks are located, or
intended to be located, entirely in one State
49 U.S.C. § 10501 (a) (2) (b) (emphasis added).
"Transportation" is defined as
(A) a locomotive, car, vehicle, vessel, warehouse,
wharf, pier, dock, yard, property, facility,
instrumentality, or equipment of any kind related
to the movement of passengers or property, or
both, by rail, regardless of ownership or an
agreement concerning use; and
(B)
services related to that movement, including
receipt, delivery, elevation, transfer in
transit, refrigeration, icing, ventilation,
storage, handling, and interchange of passengers
and property[.]
Id. § 10102(9) (emphasis added).
"Congress narrowly tailored the ICCTA pre-emption provision
to displace only 'regulation,' i.e., those state laws that may
reasonably be said to have the effect of 'managing' or
'governing' rail transportation, . . . while permitting the
continued application of laws having a more remote or incidental
effect on rail transportation." Fla. E. Coast Ry. Co. v. Cit
of W. Palm Beach, 266 F.3d 1324, 1331 (11th Cir. 2001)
(editorial marks removed)
47
AO 72A
(Rev. 8/82)
2. Application
In their pre-suit demand letter, Plaintiffs' noted that, in
June 2010, they "observed a significant dip in the railroad
tracks at the [CSX Crossing] apparently due to the loss of
supporting soils." Dkt. No. 94-1, at 3. CSX contends that this
letter establishes that the embankment and culverts supporting
the rail track constitute "transportation" as defined by the
ICCTA. Specifically, OSX asserts that the embankment and
culverts are "transportation" because they are "property .
or equipment . . . related to the movement of passengers or
property, or both, by rail" and/or "services related to that
movement." 49 U.S.C. §§ 10102(9)(A)-(B).
It is reasonable to infer that the activities discussed in
this pre-suit demand letter relate to the movement of passengers
or property. However, that is not the only plausible inference.
Stated differently, while it may turn out that this "significant
dip" brings JCI's claims within purview of the ICCTA exemption,
such an outcome is not certain based on Plaintiffs' Complaint.
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In support of its position, CSX relies on a Texas appellate
court decision that involved railroad culverts." See Dkt. No.
104, at 16 (citing A&W Props. v. Kan. City. S. Ry. Co., 200 S.W.
3d 342, 346 (Tex. App. Dallas 2006) ) . In A&W Properties, the
Texas Court of Appeals found that the plaintiff's claim was
preempted under the ICCTA. The court reasoned that:
[The plaintiff] focuses on the culvert that runs below
the bridge; the Railroad focuses on the bridge running
across the culvert. The summary judgment evidence
includes a picture of the railroad crossing at issue.
It is self-evident that any effort to widen the
culvert would necessitate making alterations to the
bridge on which the tracks cross the culvert. The
culvert and bridge are inextricably connected, and we
reject semantic efforts to characterize [the
plaintiff's] claims as involving one structure but not
the other.
A&W Props., 200 S.W. 3d at 346 n.5. In contrast to A&W
Properties, the Court cannot say at this stage what effects
the embankments and culverts had on the actual railroad.
More importantly, the Court cannot say whether the
embankments and culverts are "related to the movement of
CSX also relies on a Missouri appellate court decision. See Dkt. No. 186
(citing Viii. of Big Lake v. BNSF Ry. co., Inc., 382 SW.3d 1 25 (Mo. Ct. App.
2012) ) . However, that case involves a direct governmental attempt to
regulate the construction and operation of a rail line by requiring local
permitting and pre-clearance. No such permitting and preclearance is at
issue in this case.
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passengers or property." 49 U.S.C. § 10102(9) (A).
Evidence may reveal that the culverts and embankment are
"inextricably connected" to the rail. However, at this
point, all reasonable inferences must be construed in
Plaintiffs' favor.
Plaintiffs allege that its "state law claims do not
regulate, manage, govern, or even incidentally affect rail
transportation." Dkt. No. 111, at 18. Plaintiffs also allege
that—if the culverts and embankments at issue were related to
CSX's ability to provide transportation services—the movement
of passengers or property would have been affected by their
failure/deterioration and during construction related to their
replacement. Id. at 20. Notably, Plaintiffs' Complaint
explicitly states that the movement of passengers or property by
CSX was not stopped or interrupted during either of these
occurrences. IDkt. No. 94 191 63, 65. Therefore, taking
Plaintiffs' allegations as true, Plaintiffs' state law claims do
not constitute "transportation" under the ICCTA.
Plaintiffs' Complaint expressly states that the embankment
and culverts are not related to CSX's transportation services.
Id. While CSX contends that the pre-suit demand letter
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contradicts Plaintiffs' Complaint, viewing the allegations in
Plaintiffs' favor removes any alleged contradiction.
Taking Plaintiffs' allegations as true, Plaintiffs' state
law claims do not constitute "transportation" under the ICCTA.
Consequently, the ICCTA does not preempt those claims. CSX's
motion to dismiss these claims is DENIED.
D. Personal Liability of Individual Marshall Defendants
The Marshall Defendants submit that Counts 4 (nuisance),
5 (injunctive relief), 7 (Trespass), 8 (negligence),
9 (negligence per se), 12 (punitive damages), and 13 (attorney's
fees) should be dismissed as to Defendants D.C. Lawrence, Joseph
Marshall, and Donald Lawrence. Dkt. No. 103-1, at 17-20.
Specifically, these Defendants assert that the Complaint only
contains factual allegations against them in their capacities as
owners, managers, agents, or contact persons for Marshall
Square, LLC. Id. at 17-18.
In response, JCI contends that D.C. Lawrence is liable for
the torts committed at the Marshall Square site due to its own
acts and omissions at the site. Dkt. No. 119, at 21-22. JCI
also contends that factual allegations related to these claims
create a plausible inference that Defendants Joseph Marshall and
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Donald Lawrence personally participated in, directed, or
ratified the acts and omissions giving rise to these claims.
Id. at 19-20.
Plaintiffs' Complaint contains "sufficient factual matter,
accepted as true, to 'state a claim to relief that is plausible
on its face.'" Iqbal, 556 U.S. at 678 (20.09) (citation
omitted) . Under Georgia law, an "officer of a corporation who
takes part in the commission of a tort by the corporation is
personally liable therefor[e], and an officer of a corporation
who takes no part in the commission of a tort committed by the
corporation is not personally liable unless he specifically
directed the particular act to be done or participated or
cooperated therein." Jennings v. Smith, 487 S.E.2d 362, 363-64
(Ga. Ct. App. 1997) (citations omitted); see also Milk v. Total
Pay & HR Solutions, Inc., 634 S.E.2d 208, 213 (Ga. Ct. App.
2006) ("An LLC member may be held individually liable if he or
she personally participates or cooperates in a tort committed by
the LLC or directs it to be done." (citations omitted)).
JCI's factual allegations create a basis for its state law
claims against Defendants D.C. Lawrence, Joseph Marshall, and
Donald Lawrence. Specifically, JCI alleged that Defendants
Joseph Marshall and Donald Lawrence "personally participated in,
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directed, ratified, and/or exercised control over the acts
and/or omissions creating the conditions at Marshall Square
[PUD] that resulted in the impacts and damages to the [Golf
Course] described herein." Dkt. No. 94 191 110, 112. JCI also
alleged that these Defendants were responsible for ensuring
compliance with the CWA and failed to do so. Specifically, JCI
alleged that both men were (1) responsible for the design,
installation, and maintenance of Best Management Practices
("BMPS") on the site, (2) responsible for compliance with
related laws, (3) apprised of BMP non-compliance, and (4) at
least one of these men received a stop-work order related to
work at Marshall Square PUD. Id. IT 109, 111. Furthermore,
both Defendants had knowledge of how the alleged conduct
continues to damage JCI's property, yet the allegedly unlawful
activities persist. Id. IT 109-13. These allegations are
sufficient to render JCI's claims against Defendants Joseph
Marshall and Donald Lawrence plausible.
Moreover, D.C. Lawrence is ultimately jointly liable for
actions taken by its officers who act in its name. See O.C.G.A
§ 14-11-301 (defining powers, duties, and authority of LLC
members and managers); of. Alexander v. Hulsey Envtl. Servs.
Inc., 702 S.E.2d 435, 438 (Ga. Ct. App. 2010) ("A corporation is
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an artificial person and can only act through its directors,
officers, agents, and servants. The tortious officer, agent and
the corporation for whom they are acting when the tort is
committed can be sued in the same action jointly." (alterations
omitted)) . Defendants Joseph Marshall and Donald Lawrence are
agents and/or officers of D.C. Lawrence. Dkt. No. 94 ¶I 109-13.
Moreover, Joseph Marshall c/o D.C. Lawrence is listed as the
owner of Marshall Square PUD on the allegedly deficient Storm
Drainage Plan and Erosion and Sedimentation Pollution Control
Plan. Id. ¶I 100-01. Thus, D.C. Lawrence is liable for actions
taken by its officers, Joseph Marshall and Donald Lawrence.
Consequently, Plaintiffs' allegations are sufficient to make
JCI's claims against D.C. Lawrence plausible.
Plaintiffs' Complaint contains factual allegations
sufficient to make JCI's state law tort claims plausible.
Consequently, the Marshall Defendants' motion to dismiss Counts
4-5, 7-9, and 12-13 is DENIED.
V. CONCLUSION
For the reasons stated above, the Marshall Defendants'
Motion to Dismiss is DENIED (Dkt. No. 103), and CSX's Motion to
Dismiss is DENIED.
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Dkt. No. 104.
SO ORDERED,
this 28th day of March, 2013.
L-fSA GOD EY OOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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